Digests

Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans)

T-213-03

2004 FC 1265, Russell J.

16/9/04

86 pp.

Judicial review of decision by Department of Fisheries and Oceans Canada (DFO) as to scope of project for which environmental assessment should be conducted--DFO responsible authority under Canadian Environmental Assessment Act (CEAA), for project derived for purposes of CEAA from proposal of respondent TrueNorth Energy Corporation (TrueNorth)--TrueNorth proposing to develop oil sands extraction mine in Alberta--Mine involves removal of oil-laden soil--Fish-bearing stream, Fort Creek, runs through area of proposed mine--Development requiring destruction of Fort Creek--Authorization to destroy fish and fish habitat required under Fisheries Act (FA), s. 35--CEAA, s. 15 gives responsible authority responsibility to determine scope of project to be assessed--DFO identified scope of project in relation to which environmental assessment should be conducted as destruction of Fort Creek and associated activities--Applicants opposing DFO's decision to scope oil sands project as limited to destruction of Fort Creek-- Applicants concerned about potential for oil sands project's emissions to contribute to acid rain, greenhouse gas emissions, cumulative impacts of project in combination with other oil sands projects, lack of specificity in proposed mitigation measures, lack of federal involvement in mitigation of project's effects, integrity of CEAA assessment process-- Applicants submitting decision, supporting reasons, disclose: (1) error in interpretation of scope of federal assessment power under CEAA; (2) unreasonable exercise of discretion in determining scope of project to be assessed; and (3) error in interpretation of definition of "project" and Inclusion List Regulations under CEAA--Re: (1), (2) applicants submitting DFO took position project subject to federal environmental assessment under CEAA must correspond to federally regulated undertaking involved in application, thus causing DFO to scope destruction of Fort Creek for assessment when should have scoped mining project identified in TrueNorth's application--Affidavit of Area Chief, Habitat, person responsible for ensuring DFO conducted regulatory processes under Fisheries Act, stating responsible authority has discretion with regard to scoping of project and discretion "must be exercised reasonably for any given case" and that "scope of a project must be determined on a case-by-case basis"--However, affidavit goes on to say "for projects subject to s. 5(1) regulatory triggers, the scope of project must be limited to those elements over which the federal government can validly assert authority either directly or indirectly"--In scoping project, affiant felt legally constrained to limit scope of any assessment to those elements of project over which federal government could validly assert authority --Principal issue whether wrong to assume such legal constraint and, if so, whether vitiates decision-- Applicants submitting restrictive approach to scoping resting upon mistaken interpretation of CEAA and scope of federal assessment power--Relying on Friends of the Oldman River v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 (Oldman River); Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159 (Hydro-Quebec); Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (C.A.) (Friends of the West Country)--Oldman River not of any real assistance to applicants in context of scoping decision--That decision considered constitutional question involving particular Guidelines Order and Supreme Court of Canada made it clear "scope of assessment is not confined to the particular head of power under which the Government of Canada has a decision-making responsibility within the meaning of the term `proposal'"--Oldman River not suggesting scope of assessment does not have to be connected to relevant head of federal power engaged by application-- Scoping mandate of DFO found in CEAA itself, not by reference to decision such as Oldman River--In Hydro-Quebec, Supreme Court of Canada examined whether National Energy Board entitled to consider, as relevant to decision to grant licences, environmental impact of construction by Hydro-Quebec of future production facilities to transmit electricity--Finding "Court of Appeal erred in limiting the scope of the Board's environmental inquiry to the effects on the environment of the transmission of power by a line of wire across the border"--In that decision, environmental effects within province had to be "relevant" to Board's decision to grant export licence before Board could consider those effects--Decision not saying federal authority can consider all environmental effects once powers engaged-- Effects must be relevant to decision--Granting of Fisheries Act, s. 35(2) authorization not requiring DFO to consider all environmental effects emanating from mining project--Nothing in Hydro-Quebecrequiring sanctioning or even encouraging such view--Once CEAA triggered, nothing in s. 15 or any provision related to scope of assessment specifically limiting scoping decision to relevant head of federal jurisdiction occupied by responsible authority--No such words of limitation necessary because could not have been Parliament's intent to authorize responsible authority to environmentally assess aspects of project unrelated to those heads of federal jurisdiction called into play by project in question--Friends of the West Country dealing specifically with interpretation of CEAA, s. 16(1)(a), (3)--Under s. 16(1)(a), responsible authority not limited to considering environmental effects solely within scope of project as defined in CEAA, s. 15(1) or "to considering only environmental effects emanating from sources within federal jurisdiction" --But s. 16(1)(a) dealing with "cumulative effects"--Implicit in cumulative effects assessment both project as scoped and sources outside scope to be considered --Cumulative effects not issue herein--Application concerned only with scoping decision of responsible authority under s. 15(1)--Read as whole, affiant's reasons for scoping decision effectively saying mindful scoping must be in accordance with federal responsibilities and in relation to areas where condi-tions can be placed on proponent--On basis of present authorities, assumption correct and decision should not be set aside on this basis--Applicants also arguing improper delegation of scoping authority, duties to province of Alberta --Relying on statement in affidavit that considered fact province addressed environmental concerns to DFO's satisfaction in making scoping decision--Applicants alleging that statement implicit acknowledgement oil sands project as whole could have been scoped and evidence decision-maker abdicated responsibilities under CEAA in favour of province--Court cannot engage in speculative exegesis--In context of decision as whole, statement not providing sufficient evidence for either interpretation advanced by applicants--Therefore, no reviewable error on this ground--(3) Third legal error advanced is that DFO relied upon erroneous interpretation of definition of "project" in CEAA and Inclusion List Regulations--Affiant referring to Inclusion List Regulations to support characterization of CEAA "trigger"--DFO conceding error but submitting mere technicality with no real impact on final scoping decision--Nothing in definition of "project" in CEAA, s. 2 would prevent destruction of Fort Creek from being project in own right and for reasons advanced by DFO, no reviewable error occurred over this issue--No reason to interfere with decision based on unreasonableness, other grounds--Many of applicants' assertions concerning consequences of decision speculative, arguable--However, once Court accepting decision concerning scope of project should be connected in some way with head of federal regulatory authority that has triggered CEAA, difficult to find fault with decision that carefully took this factor into account and defined scope accordingly--Application dismissed--Canadian Environmental Assessment Act, S.C. 1992, c. 37, ss. 2(1) "project", 5(1), 15, 16(1)(a), 29--Fisheries Act, R.S.C., 1985, c. F-14, s. 35--Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, SOR/97-181-- Inclusion List Regulations, SOR/94-637.